After-Dinner Address for Samuel Griffith Society Conference
Hilton Hotel, Sydney, 22 August 2026
Thank you for that warm introduction. I also thank your President, Mr Allan Myers AC KC, and the members and friends of the Samuel Griffith Society for your hospitality and this opportunity to offer a few remarks.
Not too long before this society was established to reflect upon the nature, role and limits of our constitutional arrangements, of federalism, parliamentary democracy and the common law, I repented of my legal career. From time to time, I have been asked whether my change of direction back then was inspired by Jesus’ words, recorded in chapter 11 of Luke’s Gospel, “Woe to you lawyers.”[i] Well, unfortunately for me, the same texts also have Jesus inveighing against the scribes (or theologians) and the chief priests and pharisees (or religious leaders),[ii] which were my two subsequent professions, so you might say that I am a triple offender! I’m not sure if that is any consolation for you lawyers…
What might a recovering lawyer-theologian now Archbishop have to say to a room full of judges, legal practitioners, constitutional scholars, law students and others—especially ones gathered in the name of Australia’s first Chief Justice and one of the principal architects of our Constitution?
Well, on most Sundays for the past three years now, somewhere between a hundred and a thousand people have gathered at the Northern end of Hyde Park, between St Mary’s Cathedral, the Great Synagogue and St James Anglican Church, to protest the war in Gaza and the Israeli government. Many of us would share the concern for the suffering of the people of Gaza. But the slogans blasted through highly amplified megaphones, often pointed directly at the cathedral doors during Sunday liturgies, have ranged from the now familiar “Free Palestine” and “From the river to the sea” to calls for unending “intifada” and “revolution.” The speeches and chants, placards and flyers have regularly strayed into attacks on all Israelis, all Jews, or all Western nations for their supposed complicity or shared guilt. I leave aside for now whether our laws should tolerate calls for the elimination of the Jewish people, given where we know such rhetoric can lead. But many regular worshippers, as well as tourists, have reported feeling so intimidated by the hateful mood in the park that they now use other routes to get to the cathedral or attend worship at other times or places…
From the time of the Vietnam War protests to today, no cause, so far as I know, has ever been avowed with demonstrations outside a place(s) of worship, on the day of worship, with the same unrelenting message, almost every week for more than two years. That these regulars do not decry Mr Putin’s adventures in the Ukraine or other supposed invasions and genocides, week after week at my place or elsewhere, makes me wonder how much this is driven, not by a love for peace and freedom, but by old-fashioned antisemitism. But tonight I want to focus on the new phenomenon of an endlessly rolling demonstration that proves highly disruptive for a particular community even if it is not especially aimed at them—in this case for the worshippers in the mother Church of Catholicism in this country.
As I have said on more than one occasion, if someone has to bear this inconvenience, I would prefer it was Catholics on Sunday rather than Jews on Saturday: the Jews have already endured too much hatred in recent times and our city will be forever marred not just by the 2025 Bondi massacre but also by the antisemitic displays that preceded and followed it. But I cannot help wondering why our civil authorities tolerate this particular protest being conducted week after week rather than less often; why it is tolerated between three places of worship every time, rather than being moved to, say, the Domain; and why it must always be conducted in the middle of a day of worship rather than a neutral day or evening. While the police and state government have expressed sympathy, they seem paralysed to do anything about it and the organisers of the demonstration are clearly unfazed by how negatively it affects the Catholic community.
After almost three years of this experience, I think it is high time to ask whether we have the balance right between freedom of political communication, now recognised as implied in our Constitution, and other fundamental freedoms, including the freedom to gather and worship in peace?
Let me be clear that I regard peaceful protest as one of the proper freedoms of a liberal democracy, a critical safeguard against tyranny. Building upon the Judeo-Christian Scriptures and a long tradition of teaching about the dignity of the person, of conscience and of community, the Catholic Church has formally insisted on freedoms of speech and association, at least since John XXIII in Pacem in Terris in 1963 and the Second Vatican Council in Gaudium et Spes in 1965.[iii] Similar claims were made in international instruments soon after these Church statements.[iv] But the Church documents, at least, observed that there is a proper reciprocity of rights and duties between persons, and a responsibility to pursue not just one’s own interests or ideologies but the common good of the members of the community “in truth, justice, charity and freedom.”[v]
On this account, the freedom to conduct public protests cannot reasonably be thought to be so absolute that all other freedoms and responsibilities must always bend to it. Protests take place in shared civic spaces, where other people have competing and legitimate claims upon those spaces; they articulate thoughts some of which contribute to responsible citizenship and social debate but others of which merely inflame hatreds and endanger people’s security; they involve noise, occupation of premises, obstruction of public thoroughfares, and demands upon police resources. Such demonstrations also reduce the amenity of the park and adjoining places of worship for others who might want to use those spaces for work, leisure, passage or worship, to exercise their own rights and enjoy their lives in that area without interference or intimidation.
As best I understand Australian constitutional law, it has never regarded political communication or the right to protest as some kind of master principle or moral absolute trumping all other rights and responsibilities. It is true that in 1992 the High Court declared invalid some sections of two Commonwealth laws which attempted to restrict political advertising, insisting that freedom of communication on political matters is a necessary aspect of that representative government entrenched by the Constitution, especially sections 7 and 24.[vi] But the Constitution, the courts and our long tradition of common law have never asserted that individuals (or groups of individuals) have a right to protest on any topic in whatever manner they choose at any place and time, no matter what the effects upon other individuals or upon the common good. Rather, the courts say governments may only burden political communication in pursuit of a legitimate purpose—not just, for instance, to stop anyone criticising the incumbent government—and only with proportionate restrictions—not by, for instance, closing down all hostile media.
Although it has long been recognised that freedoms of speech and protest have proper limits—such as those required for the administration of justice, public health and safety, or national security[vii]—the recent rhetoric of some activists and even some judges suggests that political communication has a presumptive priority or trumping power over many or all other rights, no matter how it is exercised.[viii] It may be that we now value political communication too highly—as though we are drunk on the notion of protest; or that value other rights and responsibilities too lowly; or, thirdly, that we fail to balance appropriately these sometimes competing freedoms central to the common good of society.
Any talk of competing and balancing freedoms should raise deeper questions about their nature and purpose. Why, after all, do we recognise and protect any of them in law whether explicitly or by implication? What is it about political representation and communication, about freedom of speech and association, about freedom of conscience and worship, about freedom from harm or interference that makes them worthy of constitutional or other legal protection? I would not normally spoil people’s dinner with an excursus into the history of legal philosophy, but I suspect this group could endure it without indigestion—as long as I keep it brief!
One of the most enduring definitions of justice comes to us from the Roman jurist Ulpian, preserved in Justinian’s Digest and repeated in the Institutes: justice is the constant and perpetual will to give each his due.[ix] But to give something to someone or recognise his entitlement to it, is to suggest that justice is relational, that it is not just for me but for each and all of us. The focus is not just on what I can get, not even on what I can reasonably expect to get, but also on what I owe my neighbours, and how what we owe each other interacts. St Thomas Aquinas built on this classical understanding in his own profound treatment of justice, arguing that the proper concern of justice is our dealings with others.[x] Justice, in other words, necessarily extends beyond the individual and their interests. This leads to Thomas’ account of law itself, which he interprets not merely as an expression of political power but an ordinance of reason directed to the common good.[xi] On this understanding, law is more than just the government imposing its will for the sake of the powerful, nor even for the protection of the little guy: it must also order the common life so that it enables all citizens access to the different goods and freedoms necessary for them to flourish together in community. In Australia we call this ‘peace, order and good government.’ Echoing this in modern times, the distinguished Australian legal philosopher and jurist, John Finnis, argues that rights are not free-floating claims but only intelligible considering the genuine human goods they protect and promote, and the common good within which they are exercised.[xii] And so political communication is plainly valuable, but so too are religion, association, security and the peaceful ordering of our common life. No one of these is such a supergood that it should trump all the others on every occasion that their proposed exercise is inconsistent.
Now, if the basic contours of this classical tradition are correct, then the question is not whether protest deserves protection—clearly it does—but whether our constitution, civil and common laws, and judicial and administrative interpretations are satisfactorily accommodating this with other goods necessary in a free society. In my opinion, recent experience suggests that a satisfactory accommodation is not being achieved in New South Wales. Our Supreme Court struck down an earlier attempt to give police move-on powers in relation to protests near places of worship, principally because the provision applied even where no one was seeking to access the place of worship.[xiii] Although this was subsequently rectified, authorised public assemblies still operate largely outside those powers and the protests have not diminished. In response to the Bondi Terrorist attack in late 2025, NSW passed legislation allowing police to suspend the right to public assembly for up to 90 days following a declared terrorist incident, but in April 2026, the New South Wales Court of Appeal also struck down these anti-protest laws for overly restricting freedom of political communication.[xiv] But the question remains: what of a protest that is lawful, peaceful and authorised in isolation, but which is repeated week after week in the same place and so substantially burdens another community’s rights?
Consider the following: in 2018, the NSW Parliament passed laws that criminalised any form of abortion-related communication within 150 metres of an abortion facility, with even offers of pregnancy assistance leaving a person liable to a $11,000 fine or 12 months in prison.[xv] Similar laws exist in every state and territory across the country. The High Court has upheld the constitutionality of such abortion buffer zones.[xvi] While acknowledging these laws impact on the implied freedom of political communication, the court ruled such impositions necessary and proportionate in the protection of the rights of others.
So, if the right to protest is not absolute and the courts are willing to limit this freedom in certain circumstances, why has it appeared impossible in recent years, especially in relation to anti-Israel demonstrations? I am optimistic that a solution can be found, because other jurisdictions dealing with the same issue of repeated protest have demonstrated a capability of enacting laws that strike a good balance between protest and worship, as well as other relevant rights and freedoms. Recently the United Kingdom has addressed the particular problem of repeated protest very reasonably. These reforms allow police to impose conditions on protests near places of worship where worshippers may be intimidated or deterred, and expressly require police to take account of the cumulative impact of frequent protests on a local area.[xvii] I am not suggesting the solution is just to import the British model: rather what I am suggesting is that liberal democracies like our own are capable of safeguarding rights of political protest whilst also weighing the flow-on effects, and assessing whether the cumulative effect of repeated protests is an unreasonable burden on the lives and freedoms of others.
I conclude with more questions. Should Australian lawmakers and judges take greater account of the cumulative impact of repeated protest, week after week, in the same place? Should police be given greater scope to impose reasonable conditions regarding protests near a place of worship? Should the implied freedom of political communication be balanced against other rights, rather than becoming something of a super right? And if our answers to these questions are affirmative, is a solution possible within the confines of our present constitutional arrangements? I have deliberately addressed a rather narrow issue tonight, and one in which I have a particular interest. Nonetheless, I trust you will agree that it deserves some serious attention. What’s more, I think it illustrates the way explicit rights clauses in constitutions, or implied rights read into constitutions, or bills of rights alongside constitutions, or other mechanis
[i] Lk 11:46,42.
[ii] Mt 3:7; 5:20; 9:10-13; 12:1-8,22-42; 15:1-20; 16:1-12; 21:45; 22:15-46; 23:1-36; Lk 5:17-39; 6:2-11; 7:30,39-50; 11: 37-44, 53-54; 12:1; 14:3-6; 15:2-7; 16:14-15; 18:9-14 etc.
[iii] St John XXIII, Pacem in Terris: Encyclical on Establishing Universal Peace in Truth, Justice, Charity and Liberty (1963), 12,23-24,26 etc.; Vatican Council II, Gaudium et Spes: Pastoral Constitution on the Church in the Modern World (1965),26,29,73-76.
[iv] International Covenant on Civil and Political Rights (1966), art. 19, 21 & 22, and International Covenant on Economic, Social and Cultural Rights (1966), art. 8(1)(a). Cf. International Convention on All Forms of Racial Discrimination (1965), art. 5; United Nations Convention on the Rights of the Child (1989), art. 15; Convention on the Rights of Persons with Disabilities (2006), art. 21.
[v] Pacem in Terris 30-35,62 etc.; Gaudium et spes 43,74-76.
[vi] Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; and Nationwide News v Wills [1992] HCA 46, (1992) 177 CLR 1. Likewise Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[vii] E.g. Mason J in Australian Capital Television PL v Commonwealth: “In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of ‘an ordered society’ or a ‘society organized under and controlled by law’. Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public.”
[viii] Examples of commentaries that weigh the right to protest more heavily than other rights: Amnesty International, “What is the right to protest and why is it important?” Amnesty 17 August 2022; “Submission to NSW Review of the Crimes Act 1900,” Amnesty 29 May 2024; “Victoria’s revised protest laws pass but human rights concerns remain,” Amnesty 4 December 2025; Australian Human Rights Commission, “Explainer: Protest rights in Australia,” AHRC 21 August 2025 and “Freedom of assembly,” AHRC 23 April 2026; Alexandra Bell, Hashwitaa Maynoor & Lachlan Wilkinson, “What is happening with protest laws in NSW?” Australian Human Rights Institute https://www.humanrights.unsw.edu.au/ students/blogs/what-is-happening-nsw-protest-laws; Anne Charlton, “The right to protest,” NSW Council for Civil Liberties 27 October 2023; Human Rights Law Centre, “Protest in peril report,” HRLC April 2025; Luke McNamara, “On your right to protest,” UNSW Centre for Ideas, https://unswcentreforideas.com/article/luke-mcnamara-your-right-protest; Police Accountability Project, “Protests and policing,” https://policeaccountability.org.au/issues-and-cases/protests-policing/
[ix] Ulpian, Regulae 1, in Justinian, Digest 1.1.10 pr.
[x] Thomas Aquinas, Summa Theologiae II–II, q. 58, aa. 1–2.
[xi] Thomas Aquinas, Summa Theologiae I–II, q. 90, aa. 2, 4.
[xii] John Finnis, Natural Law and Natural Rights (2nd edn., OUP, 2011), esp. pp. 198–230; Aquinas: Moral, Political and Legal Theory (OUP, 1998).
[xiii] Lees v State of New South Wales [2025] NSWSC 1209, striking down provisions of the Crimes Amendment (Places of Worship) Act 2025 (NSW) and the Law Enforcement (Powers and Responsibilities) Act 2002 Amendment Act 2025 (NSW).
[xiv] Jarrett v State of New South Wales [2026] NSWCA 62, striking down provisions of Terrorism and Other Legislation Amendment Act 2025 (NSW).
[xv] Public Health Amendment (Safe Access to Reproductive Health Clinics) Act 2018 (NSW).
[xvi] Clubb v Edwards; Preston v Avery [2019] HCA 11.
[xvii] Crime and Policing Act 2026 (UK), ss 164–165; UK Home Office, “Crime and Policing Act 2026: Public Order Police Powers Factsheet,” 19May 2026. The reforms address protests near places of worship and require consideration of the cumulative impact of frequent protests: https://www.gov.uk/government/publications/crime-and-policing-act-2026-factsheets/crime-and-policing-act-2026-public-order-police-powers-factcheet?utm_source=chatgpt.com
